October 08, 2005

Grammatical indoctrination at law reviews

One of the emails in response to my post on Coulter the Grammarian was from John W. Brewer, who suggested that we look for the roots of Coulter's feelings about that v. which in her experience on law review at the University of Michigan law school.

... a key part of law review culture is a hyperlegalistic concern with details of style and usage,
and an almost pathological fear of exercising discretionary judgment among plausible alternatives. For
any style/usage issue, the notion is that there must be a rule, and you can look the rule up in an
authoritative source, and once you've done that you should follow the rule strictly, both in your own
writing and especially in seizing opportunities to make petty corrections to the writing of others.
The so-called "Blue Book" provides most of the obsessive-compulsive detail on matters of abbreviation
and the like (should the U.S. Court of Appeals for the Second Circuit be abbreviated "(2d Cir.)" or
"(2nd Cir.)"? For God's sake, don't guess! Look it up!). But it doesn't deal directly with many
issues of prose style where people like this intuitively sense that There Must Be a Rule.
For that, many law review types use as their authoritative source the Texas Law Review Manual of Usage and Style (MoUS), which I dimly recall from unhappy encounters with it circa 1990 as having a particularly
obsessive and wrongheaded view of the that/which issue ...

In the absence of an anthropological study of law review culture, the legally-naive reader might take a look at Judge Richard Posner's "Against the Law Reviews" ("Welcome to a world where inexperienced editors make articles about the wrong topics worse").

With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length. Their staffs are large, but the members, being students, are inexperienced both in law and in editing. With such abundant manpower and no reliance on peer review, law reviews do not forbid simultaneous submission or insist on brevity, and the interval between initial submission and final publication is much shorter than in other scholarly fields. The size of law review staffs enables them not only to check the author's citations but also to make many substantive comments and to engage in line-by-line copyediting.

Language Log readers will not be surprised to learn that the student copyeditors, in addition to imposing MoUS, sometimes favor idiosyncratic linguistic theories of their own invention. Judge Posner cites a striking example:

According to an article written by James Lindgren at Northwestern Law School in the Chicago Law Review, one law review editor "thought that many uses of the word 'the' in an article were errors. Following this bizarre rule of thumb, he took as many 'thes' out of manuscripts as he could, thus reducing many sentences to a kind of pidgin."

An average top-tier law review has a staff of about 80 students. Instead of engaging in pro bono work or their own research, those students spend—and this is a very conservative estimate—7000 hours per year editing the work of law professors. Now multiply that across the dozens, if not hundreds, of law journals out there.

If there are 143 law reviews operating at the cited scale -- a plausible particularization of "dozens, if not hundreds" -- that's a million hours a year of law-review editing. This is an extraordinary experiment in mass indoctrination. As John Brewer wrote,

In my experience, the law review experience may intensify preexisting tendencies toward
bogus prescriptivism among well-educated young people, with longlasting negative effects.
Liberal, conservative, and moderate students seem equally at risk. It's particularly sad if someone
like Ann, who was otherwise able to be fiercely critical about the legitimacy of the overwhelming
majority of what her conventionally left-of-center professors and fellow students in law school
presented to her, buys into it. You (or another Language Log contributor?) have made the point
before that the grammar of a natural language is helpfully thought of as a Hayekian spontaneous order.
Since Ann is right-wing enough both to know what that means and to believe that such spontaneous orders
are generally preferable to the bureaucratic diktats of graduates of elite law schools, the
oft-lamented-on-LL failure of communication between the specialized linguistics culture
and the general educated public is particularly regrettable in her case.

It was Glen Whitman who first suggested that grammar is a Hayekian spontaneous order , in discussing Geoff Pullum's "third position" between the "two extremes: on the left, that all honest efforts at uttering sentences are ipso facto correct; and on the right, that rules of grammar have an authority that derives from something independent of what any users of the language actually do." I just quoted and linked to Glen's post.

[While we're here, it occurred to me to check Friedrich Hayek's stance on which v. that. I looked in three of his on-line works, checking them in chronological order.

In "Economics and knowledge", (a presidential address to the London Economic Club, 10 November 1936), First published in Economica (February 1937), I found that the first integrated-relative which occurs in the second sentence:

Its main subject is of course the role which assumptions and propositions about the knowledge possessed by the different members of society play in economic analysis.

If we possess all the relevant information, if we can start out from a given system of preferences, and if we command complete knowledge of available means, the problem which remains is purely one of logic.

And in the Foreword to Economics as a Coordination Problem: (1977), Hayek's use of integrated which is delayed all the way to the fourth sentence:

It is a curious fact that a student of complex phenomena may long himself remain unaware of how his views of different problems hang together and perhaps never fully succeed in clearly stating the guiding ideas which led him in the treatment of particulars.

If Ann Coulter were here, I'd
ask her whether Hayek so often committed
"the sort of error that results from trying to sound 'Ivy League' rather than being clear", and whether his essays and speeches "would be a lot more convincing without all the grammatical errors"?]